I don't know the medical rationale, no. . . . Regarding
the specific amounts of individual drugs, I have no knowledge as to what drug
quantities were used, or why they may have differed from other states, no, I do
not . . . that was beyond me. Richard Peabody, Louisiana State Penitentiary deputy
warden, responding to a question about the drugs used in Louisianas lethal
injection protocol, which he helped to develop80

Its not about the prisoner. Its about public policy.
Its about the audience and prison personnel who have to carry out the
execution.Dr. Mark Dershwitz, anesthesiologist and expert witness for
state corrections departments on lethal injection drug protocols81

Thirty-six states use the same three-drug sequence for
lethal injections: sodium thiopental to render the condemned inmate
unconscious; pancuronium bromide to paralyze the condemned inmates voluntary
muscles; and potassium chloride to rapidly induce cardiac arrest and cause
death.82

This three-drug sequence puts the prisoner at risk of high
levels of pain and suffering. If he is not appropriately anesthetized, he will
be awake when he is paralyzed by the pancuronium bromide and will experience
suffocation when he is not able to breathe.83 If the anesthesia remains insufficient,
he will experience excruciating pain from the potassium chloride. Nevertheless,
according to Human Rights Watchs research, no state which has used these three
drugs for lethal injections has ever changed to different drugs.84

Potassium chloride is the drug that causes death in an
execution under current lethal injection protocols. Although the other two
drugs are administered in lethal dosages and would, in time, produce the
prisoners death, potassium chloride should cause cardiac arrest and death
within a minute of injection.85
While potassium chloride acts quickly, it is excruciatingly painful if
administered without proper anesthesia.86 When injected into a vein, it inflames
the potassium ions in the sensory nerve fibers, literally burning up the veins
as it travels to the heart.87
Potassium chloride is so painful that the American Veterinary Medical
Association (AVMA) prohibits its use as the sole agent of euthanasiait may
only be used after the animal has been properly anesthetized.88

There are less painful drugs that will cause death. For
example, experts have suggested pentobarbital, which can be administered in a
single injection. Indeed, this is the most common method of euthanizing
domesticated animals.89
In Oregon, which has legalized physician-assisted suicide for the terminally
ill, state doctors prescribe an overdose of barbiturates like pentobarbital for
their dying patients. The states medical ethics board determined that an
overdose from a long-acting barbiturate was the most humane way to help someone
dieit is painless, effective, and does not require the presence of a doctor at
the time of ingestion in pill form.90
According to a physician who consulted with Oregon legislators before the
passage of the physician-assisted suicide bill in 1994, an overdose from a drug
like pentobarbital is the best death one could give someone who is suffering.91

Medical experts have also recommended one lethal dosage of
sodium thiopental without following it with other drugs. A single injection of
this drug has all the advantages and none of the disadvantages that other
drugs manifest [which are] difficult, cumbersome, [and] amateurish to utilize.92

Dr. Mark Dershwitz is a professor of anesthesiology who has
been an expert witness on behalf of several states, defending their lethal
injection protocols against constitutional challenges.93 Dershwitz told Human
Rights Watch that state officials have asked him about drugs other than
potassium chloride that they could use to induce cardiac arrest in a condemned
inmate. He said they have asked specifically about the vet option, meaning
the use of pentobarbital. Dershwitz recounted for Human Rights Watch how he
explained to the officials the difference between the pharmacological effects
of pentobarbital and potassium chloride:

The pharmacological effect of potassium chloride kills an
inmate, and it happens quickly. If one uses just a large does of barbiturate,
circulation will stop, the inmate will die, but it wont happen in two minutes.
Electrical activity in the heart may persist for a very long time, in healthy
people almost certainly for more than a half an hour. Everyone involved will
have to wait a very long time for the heart to stop.94

According to Dershwitz, no state corrections official whom
he has told about the increased length of time pentobarbital may take to kill a
condemned inmate has pursued using it instead of potassium chloride, even
though pentobarbital is less painful. Human Rights Watch asked Dershwitz to
explain why he thought corrections officials would risk using a painful drug
like potassium chloride rather than a safer drug like pentobarbital; he said:

Its not about the prisoner. Its about public policy.
Its about the audience and prison personnel who have to carry out the
execution. It would be hard for everybody to have to sit and wait for the EKG
activity to cease so they can declare the prisoner dead.95

Pancuronium bromide, commonly known by its brand name
Pavulon, is a neuromuscular blocking agent that paralyzes all of a bodys
voluntary muscles, including the lungs and diaphragm.96 Given enough time to
act, Pavulon will cause death by asphyxiation. It does not affect
consciousness, however. Nor does it affect experience of pain. Without proper
anesthesia, anyone given Pavulon will feel himself suffocating, but, because
the pancuronium bromide prevents any movement, speech, or facial expression, he
will be unable to reveal that he is suffering.97 If the prisoner is still conscious when
the potassium chloride is injected, the Pavulon will also prevent him from
conveying to the executioners or the witnesses that he is experiencing pain.98

When a patient is awake during surgery and able to recall
the experience afterward, the condition is called intraoperative awareness.99 The problem
is so serious that in 2005 the American Society of Anesthesiologists issued a
Practice Advisory. The advisory notes that certain conditions may increase
the risk of someone experiencing intraoperative awareness, including when the
anesthesia is administered intravenously (as it is in lethal injection
executions) or when the person receiving anesthesia has a history of substance
abuseoften frequent with prisoners.100 Surgery patients who have been
administered Pavulon or other neuromuscular blocking agents with inadequate
anesthesia have reported terrifying and torturous experiences where they were
alert, experiencing pain, and yet utterly unable to signal their suffering.101 A
woman who was awake but paralyzed by a neuromuscular agent during her eye
surgery explained her efforts to make the surgeon aware she was conscious: I
was fighting to move with every ounce of energy I had . . . and there was no
acknowledgment from the anesthesiologist.102 Once she realized that she could not
convey to the doctors that she was awake, she felt: I would rather die than
stay like this . . . I just dont want to be alive. I cantI cant stay alive
through this. II just cant do it.103

The danger of masked suffering because of neuromuscular
blocking agents like pancuronium bromide is so great that at least thirty
states have banned by statute the use of such drugs in the euthanasia of
animals.104
It is noteworthy that the AVMA has said that, [a] combination of pentobarbital
with a neuromuscular blocking agent is not an acceptable euthanasia agent for
animals, because of the concern about controlling the proper onset and timing
of anesthetic agents and paralytic agents.105 In other words, state corrections
officials have settled on a protocol and procedure to kill their condemned
inmates that is considered too risky and dangerous for the euthanasia of dogs
and cats.

At least some wardens are aware of the danger that an inmate
may be conscious during his execution but unable to convey his pain. For
example, the North Carolina warden who oversees that states executions has
stated: I know there were some concerns raised that the way we were using the
drugs at that time could possibly cause an inmate to become conscious during an
execution.106

In the three-drug sequence, the neuromuscular blocking agent
such as Pavulon is not necessary to ensure the prisoners death nor does it
reduce any suffering he may feel. Confronting a record devoid of justification
for the use of Pavulon, the Tennessee Supreme Court concluded its use is
unnecessary and the state has no reason for using such a psychologically
horrific drug to execute [a condemned inmate] If Pavulon were eliminated from
the lethal injection method, it would not decrease the efficacy or the
humaneness of the procedure.107
Asked why he included a paralytic agent in Oklahomas statute, Chapman told
Human Rights Watch: Whats the problem? We could have a five or six drug
protocol, I dont care. I called for the use of a barbiturate and a paralytic
agent just because its better to have two things that could kill a prisoner
than one.108

Pancuronium bromide does serve a purpose, however. It places
a chemical veil between the condemned prisoner and the execution team and
witnesses.109According to Dershwitz, The pancuronium will prevent motor manifestations
of physiological processes that could be perceived by witnesses as unpleasant
or suffering on the part of the inmate.110 When the potassium chloride induces
cardiac arrest, it also deprives a condemned inmates brain of oxygen, which
may cause an involuntary jerking of the arm and leg muscles a lay witness in
the audience may misperceive that as something akin to suffering. And so the
pancuronium would prevent the motor manifestation of that procedure so in my
mind, the pancuronium does serve a useful purpose.111

In short, pancuronium bromide contributes to the appearance
of a peaceful-looking execution. It reassures onlookersand the publicthat all
is well, regardless of what the prisoner is actually experiencing.

If condemned inmates are to be spared the intense suffering
of conscious suffocation from pancuronium bromide, and the excruciating pain of
potassium chloride burning through their veins, it is essential that they be
properly anesthetized first. Sodium thiopental is the anesthetic administered
at the start of the lethal injection execution to render the inmate unconscious
before the other two drugs are injected.112 State protocols generally call for
between 1200 to 5000 milligrams of sodium thiopental,113amounts that far
exceed dosages used in surgery.114
If properly administered into the condemned inmates bloodstream, the amount of
the drug specified in most protocols would be more than sufficient to cause
unconsciousness and, eventually, death.115 The prisoner would stop breathing on his
own within a minute or two of the chemical entering his veins.116 However, as discussed
in Chapter Three below, methods for the administration of anesthesia in lethal
injection executions do not guarantee that the condemned inmate will be
properly anesthetized.

The three-drug sequence used today in lethal injections was
developed almost three decades ago and then, over the following two decades,
was adopted by all but one of the death penalty states.117 Despite the passage of
time, and medical advances, states have not changed this three-drug sequence.
As the Tennessee Supreme Court acknowledged in 2005, while the state of the
art of pharmacology has changed in the last thirty years, the chemical agents Tennessee uses to execute their prisoners have not.118 Chapman chose the specific drugs to be
used in Oklahomas prototype lethal injection protocol based on what was widely
used in medical surgeries at the time. He explained to Human Rights Watch that
at the time, I could not have seen that chemical agents used to induce
anesthesia would change so markedly. . . . Today, I would have just not been
so specific in my drug language in the protocols, so that corrections officials
could use the best agents of their time.119

Over the years, states have tinkered with certain relatively
insignificant aspects of their death penalty procedures, for example,
addressing how an inmate is brought into the execution chamber,120
whether to pay their executioners in cash or by check,121 how to accommodate
media access,122
what type of catheter to use,123
and what time of day the execution will take place.124 But they have left
intact the three-drug protocol and the basic process of administration
(described in Chapter Three).

There are a few exceptions. In the mid-1990s, New Jersey corrections officials, in anticipation of the states first lethal injection
execution, reviewed its lethal injection protocols. Because the state of the
art is changing daily,125
corrections officials unsuccessfully sought an amendment to the state statute
to delete reference to specific lethal agents.126 In Pennsylvania,
taking note of growing concerns about lethal injections, the Department of
Corrections recently retained an outside consultant to review the states
lethal injection procedures. Jeffrey Beard, secretary of the Pennsylvania
Department of Corrections, told Human Rights Watch that one of the options
under consideration is the use of a brain monitor to assess the effect of the
anesthesia before the other two drugs are administered.127 Robert Myers, general
counsel of the Arizona Department of Corrections, also told Human Rights Watch
that the Department has recently decided to undertake a review of its lethal
injection procedures.128
Human Rights Watch is not aware of other states that have voluntarily, i.e.
outside the context of litigation, taken steps to review their lethal injection
protocols. Even when prisoners have challenged their states lethal injection
protocols, public officials have resisted considering whether there are better
options. In prior and ongoing litigation, states have not offered to change
their drug protocols or methods of administration.

[81] Human
Rights Watch telephone interview with Dr. Mark Dershwitz, professor of
anesthesiology at the University of Massachusetts, Boston, Massachusetts, March
1, 2006.

[82] Of the
states using lethal injections for executions, Nevada is the only state which
will not publicly reveal its drug protocol. Human Rights Watch telephone
interview with Fritz Schlommater, Nevada Department of Corrections, March 31,
2006.

[83]
Testimony of Dr. Mark Dershwitz, Reid v. Johnson, No. Civ. A.
3:03CV1039, August 30, 2004, p. 26 (And I freely admit that a person whos
rendered paralyzed with a drug like pancuronium who also happens to be awake,
that would be considered horrible. And those of us who routinely use
pancuronium in our practice, take great pains to make sure that none of our
patients are awake and paralyzed at the same time.) (Dershwitz Testimony).

[84] For example, in 1999, New Jersey was facing its first lethal injection execution. The NJDOC was aware of potential problems with the drugs called for in the state statute. In 1983, when New Jersey's lethal injection statute was passed, a doctor at the NJDOC warned the NJDOC assistant commissioner that he had "concerns in regard to the chemical substance classes from which the lethal substances may be selected." The commissioner at the time, Jack Terhune, sought an amendment to New Jersey's lethal injection statute to allow the commissioner to choose better drugs if they came along. "[We wanted] a generic statement, like 'drugs to be determined and identified by the commissioner, or the attorney general, or the Department of Health'. Who knew what the future was going to bring?" The proposed amendment did not pass, and the statue remains the same as it was when passed in 1983. "New Jersey's Waltz with Death," New Jersey Law Journal, November 25, 2002, http://venus.soci.niu.edu/~archives/ABOLISH/rick-halperin/feb03/0677.html (retrieved April 4, 2006).

[87]
Dershwitz Testimony, p. 39-40 (If potassium chloride is given to an awake
individual, in other words, before thiopental, before the heart stops, it would
be quite painful because its very irritating for blood vessels.).

[88]2000
Report of the AVMA Panel on Euthanasia, 218 J. A.V.M.A., 680-681 (2001), http://www.avma.org/issues/animal_welfare/euthanasia.pdf
(retrieved April 2, 2006) (2000 Report of the AVMA Panel on Euthanasia)
(Administration of potassium chloride intravenously requires animals to be in
a surgical plane of anesthesia characterized by loss of consciousness, loss of
reflex muscle response, and loss of response to noxious stimuli.). See also
Affidavit of Dr. Kevin Concannan, D.V.M., D.A.C.V.A., Page, et al. v. Beck,
et al., Case No. 5:04-CT-04-BO, August 31, 2005, p. 4 (Potassium chloride
is unacceptable in euthanasia protocols that fail to provide for the presence
of properly trained veterinary personnel to induce proper anesthesia, assess
the physical signs indicating the veterinary patients state of consciousness, and
maintain an unconscious state throughout the euthanasia process.).

[92] From an advisory paper submitted to the NJDOC from a group of New York nurses in 1983, cited in "New Jersey's Waltz with Death." The NJDOC did not follow the nurses' advice. "New Jersey's Waltz with Death." The DOC received a document from a New York nurses in 1983.

[93] The
states for which Dershwitz has testified include Kentucky, Maryland, Missouri, and Virginia. E-mail correspondence to Human Rights Watch from Dershwitz, March
22, 2006.

[98]
Dershwitz Testimony, p. 75 (Counsel: Would the injection of Pavulon impede the
Wardens ability to be able to say whether he sees any reaction or not on the
inmates part to the drugs? Dr. Dershwitz: Well yes. For instance, if the
pancuronium was the first drug given and the person were conscious when
experiencing paralysis, they would have no motor or mechanical way of
communicating their displeasure.).

[99]
According to the Joint Commission International Center for Patient Safety,
Anesthesia awareness, also called unintended intraoperative awareness, occurs
under general anesthesia when a patient becomes cognizant of some or all events
during surgery or a procedure and has direct recall of those events. Because of
the routine use of neuromuscular blocking agents (also called paralytics)
during general anesthesia, the patient is often unable to communicate with the
surgical team if this occurs. American Society of Anesthesiologists, Practice
Advisory for Intraoperative Awareness and Brain Monitoring: A Report by the
American Society of Anesthesiologist Task Force on Intraoperative Awareness,
Case 5:06-cv-00219-JF, February 14, 2005 (copy on file with Human Rights
Watch), p. 3 (ASA Advisory).

[101]
For
instance, Jeanette Liska, author of Silenced Screams, describes her 1990
experience of lying paralyzed and awake on the operating table with no way of
communicating her awareness to the doctors and nurses in the room: Drowning in
an ocean of searing agony, I sensed the skein of my entire life unraveling,
thread by thread. But I was the only one who heard my tortured screamssilent
screams that reverberated again and again off the cold walls of my skull. Jeanette
Liska, Silenced Screams; Surviving Anesthetic Awareness During Surgery: a
True-Life Account (Council for Public Interest in Anesthesia and American
Association of Nurse Anesthetists, September 2002).

[107]AbdurRahmnan
v. Bredesen, at al., SC of TN, No. M2003-01767-SC-R11-CV, October 17, 2005,
p. 89a. The Court also found that: The method could be updated with second or
third generation drugs to, for example, streamline the number of injections
administered. Moreover, the states use of Pavulon, a drug outlawed in Tennessee for euthanasia of pets, is arbitrary. The State failed to demonstrate any need
whatsoever for the injection of Pavulon. Ibid., p. 77a. Nonetheless, the court
found against the condemned inmate, citing a lack of any visible evidence that
any Tennessee inmates had ever been conscious during their executions. This is
exactly the kind of proof that the use of Pavulon would mask. Ibid., p. 89-92.

[109] The
phrase chemical veil may have first been used in the lethal injection context
by Dr. Mark Heath in 2001, in a series of speeches he gave around the United States. Human Rights Watch telephone interview with Dr. Mark Heath, assistant
professor of clinical anesthesiology at Columbia University, New York, New York, April 9, 2006. Heath is a leading researcher on how lethal injections are
administered in the United States. Heath also serves as an expert witness on
behalf of prisoners challenging state lethal injection protocols in court. See
also, Anderson et al v. Evans et. al., (case number was not yet
assigned), Petitioners Complaint, July 13, 2005, p. 9. The American Civil
Liberties Union (ACLU) of Northern California has filed a lawsuit on behalf of
Pacific News Services seeking a permanent injunction to prevent the California
Department of Corrections and San Quentin Prison from using the paralytic drug
pancuronium bromide during executions, arguing that it violates the First
Amendment rights of execution witnesses. Complaint for Declaratory and
Injunctive Relief [42 United States Code Section 1983], (case number not yet
assigned), March 8, 2006, http://www.aclunc.org/privacy/060308-chemical_curtain.pdf
(retrieved April 4, 2006). ACLU cooperating attorney John Streeter said: The
drug effectively creates a chemical curtain that hides what really goes on in
the death chamber. In the name of freedom of the press, we are demanding that
the State take that curtain down. ACLU of Northern California, Press Release,
March 8, 2006, http://www.aclunc.org/pressrel/060308-lethal_injection.html
(retrieved April 4, 2006).

[124] Human
Rights Watch telephone interview with Reverend Carroll Pickett, former death
house chaplain in Texas, March 8, 2006 (Pickett notes that executions used to
take place at midnight in Texas, but now take place around 6 p.m.).

[125]
Statement of Ronald Bollheimer, supervisor of legal and legislative affairs for
New Jersey Department of Corrections, NJDOC public hearings transcript,
February 4, 2005, p. 33 (copy on file with Human Rights Watch).